then thrown on the person offering the will, to show that the testator was acquainted with the contents of the instrument and approved it.82 The proponent, however, need not show an actual reading of the will to the testator, provided he satisfy the court by competent evidence that the contents of the will, at the time of signing it, were what the testator intended it to be.83 Thus if the fact can be established, either by direct or circumstantial evidence, so conclusive as to admit of no reasonable doubt that the last will was truly copied from a previous will, the contents whereof were known to the testator, there will be no difficulty in admitting it to probate.84

§ 616. The Same Subject: May Be Shown by Circumstances.

If it can be shown that the will was substantially in accordance with the instructions of the testator, it may be considered sufficient evidence that he was acquainted with

82 Billinghurst v. Vickers, 1 Phillim. 187; Gerrish v. Nason, 22 Me. 438, 39 Am. Dec. 589; Day v. Day, 3 N. J. Eq. 549, 552. See, also, Blume v. Hartman, 115 Pa. St. 32, 2 Am. St. Rep. 525, 8 Atl. 219.

As to wills of those deaf, dumb, or blind, see §§ 348, 349.

It has been held that where the preponderance of evidence showed that the testatrix was not acquainted with the contents of the will; that it was executed by her at the instigation of the proponent who drew it, and who was inequitably preferred over the other children; that the testatrix was at the time in a state of excessive physical feebleness and

exhaustion; and that she had frequently expressed her intent to make an equal distribution among all the children, the question of fraud and undue influence was properly submitted to the jury.Blume v. Hartman, 115 Pa. St. 32, 2 Am. St. Rep. 525, 8 Atl. 219.

83 Moore v. Paine, 2 Lee Ecc. 595; Morrell v. Morrell, L. R. 7 Pro. Div. 68; Parker v. Felgate, L. R. 8 Pro. Div. 171; Pettes v. Bingham, 10 N. H. 514; Day v. Day, 3 N. J. Eq. 549. See, also, Hastilow v. Stobie, L. R. 1 P. & D. 64; Cleare v. Cleare, L. R. 1 P. & D. 655.

84 Day v. Day, 3 N. J. Eq. 549, 554.

its contents.85 Likewise if a testatrix has given instructions for her will, and it is prepared in accordance with them, although at the time of execution she is unable to remember what those instructions were, and is incapable of understanding what has been written, yet if relying upon her solicitor's having embodied her wishes in proper words, she accepts the paper put before her as her will and directs it to be signed, probate will be allowed.8

86

The testator's knowledge of the contents of the will may be shown by circumstances, as by its conformity to his known wishes and previous declarations.87 Although it is usually said that one who is illiterate must be shown to have been acquainted with the contents of his will,88 it would seem that where no evidence of fraud is adduced, this would be unnecessary. Likewise it is said that evidence of the partial intoxication of the testator, and that he understood English imperfectly, does not tend to prove fraud or undue influence, in the absence of proof that his condition was taken advantage of.90

§ 617. Burden of Proof on the Issue of Undue Influence.

As in a case where the issue is the testamentary capacity of the testator,91 or where a confidential relationship has been shown to have existed between the testator 85 Day v. Day, 3 N. J. Eq. 549, 555.

86 Parker v. Felgate, L. R. 8 Pro. Div. 171. This case, however, was compromised before appeal.

And see Foot v. Stanton, 1 Deane & S. Ecc. 19, admitting will of an epileptic, without evidence of knowledge of contents. See §§ 409, 431. II Com. on Wills-5

As to wills of those deaf, dumb and blind, see §§ 348, 349.

87 Montague v. Allan's Exr., 78 Va. 592, 49 Am. Rep. 384.

88 Guthrie v. Price, 23 Ark. 396; Day v. Day, 3 N. J. Eq. 549, 551.

89 Patton v. Hope, 37 N. J. Eq. 522.

90 Bonse's Will, 18 Ill. App. 433. 91 See 88 399-402.

93

and the principal beneficiary under the will,92 the authorities are conflicting as to where the burden of proof rests. It is necessary that the proponent should in the first instance establish a prima facie case, by proof of due execution of the will and of the testamentary capacity of the testator, although in some jurisdictions testamentary capacity is presumed and the presumption is accepted as evidence of the fact. If, however, the provisions of the will,95 or the surrounding circumstances 96 are such as to excite suspicion, such suspicion must be removed. But after the proponent has made prima facie proof, the authorities are at variance as upon whom the burden of proof rests. Undue influence is not presumed, neither is mental incapacity. The cases are similar to this extent: an instrument executed by one lacking testamentary capacity, or executed by reason of undue influence, is not the will of the maker. Both should be denied probate. There is, however, reason for a distinction between the two cases. Testamentary capacity is a positive requirement; it is presumed to exist unless facts to the contrary be shown. A will executed by one lacking testamentary capacity is void. Likewise an instrument which has been forged can not be the will of the purported testator. Undue influence is a negative quality; it can become an issue only in a case where the will has been duly executed by a testator of sound mind. The issue of testamentary capacity goes to the ability to execute the will; the issue of undue influence arises only where it is sought to overthrow a will duly executed by a testator mentally competent, and which, standing as his final, legally expressed intent, is not lightly to be 95 See § 397.

92 See §§ 594-597.

93 See § 400.

94 See § 399.

96 See §§ 397, 398, 587.

set aside. The same may be said of fraud, duress, or mistake. Further, fraud directly in many cases, and incidentally in others, is involved in the issue of undue influence; and where such a charge is made, especially as it aims to set aside the legally expressed will of a competent testator, those asserting the charge should be required to sustain it by competent proof. The weight of authority is that after the proponent has established his prima facie case, the burden of proving undue influence by a preponderance of the evidence is upon those who assert it."7

And it has been said that evidence of circumstances must not only show the probability of undue influence, but must be inconsistent with a contrary hypothesis.98 However, some courts maintain that the burden is always upon the proponent to sustain the will."

§ 618. Forgery: Burden of Proof.

All wills, except nuncupative, must be written or signed by the testator to the extent and in the manner prescribed by statute. Any instrument failing to meet such requireis a necessity of evidence to answer the prima facie case or it will prevail, but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue; and this burden remains throughout the trial.'"-Snodgrass v. Smith, 42 Colo. 60, 15 Ann. Cas. 548, 94 Pac. 312; Compher v. Browning, 219 Ill. 429, 449; 109 Am. St. Rep. 346, 76 N. E. 678.

As to shifting, so called, of the burden of proof, see § 394.

The party alleging undue influence must show that but for its exercise the testator would have made a different disposition of his property than he did.-Emery v. Emery, 222 Mass. 439, 111 N. E. 287.

"Evidence showing the condition of facts referred to may, or may not, be sufficient to sustain the burden of proof resting upon the contestant, according to the other circumstances of the case, and the determination of the triunal which is passing upon the issue. Such a condition might, as

a matter of fact, cast upon the proponent the burden of explanation, and the absence of satisfactory explanation would be an additional fact of more or less weight. But we do not regard it as accurately correct to say that upon the proof of this situation the burden of proof shifts from the one party to the other. This burden upon the whole evidence, taking into consideration the situation referred to and all of the other circumstances, is still upon the contestant, who is bound to sustain the proposition asserted by him by a preponderance of all the evidence."-O'Brien's Appeal, 100 Me. 156, 60 Atl. 880.

98 Boyse v. Rossborough, 6 H. L. Cas. 6; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; Gay v. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712, 5 S. W. 7.

99 Steinkuehler v. Wempner, 169 Ind. 154, 15 L. R. A. (N. S.) 673, 81 N. E. 482; McReynolds v. Smith, 172 Ind. 336, 86 N. E. 1009; Herring v. Watson, 182 Ind. 374, 105 N. E. 900.